IN THE CASE OF:
BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100011633
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that item 10 of his DA Form 199 (Physical Evaluation (PEB) Proceedings) be changed to show his neck injury was caused by an instrumentality of war.
2. The applicant states his medical evaluation board (MEB) and MEB Summary stated his neck injury was a battle injury.
3. The applicant provides copies of his:
* MEB Proceedings
* MEB Summary
* PEB Proceedings
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned as a second lieutenant in the U.S. Army Reserve on 15 May 1999. He served continuously on active duty until his placement on the Retired List for physical disability.
2. On 7 October 2009, an MEB referred the applicant to a PEB for:
* neck pain secondary to trauma resulting in C4/5/6/7 osteoarthritis, degenerative disc disease, and herniated disc; residual pain after surgery is disabling; battle injury
*
low back pain - degenerative disc disease
* low back pain - herniated disc
3. The MEB Summary stated the onset of his neck and shoulder pain was during Operation Iraqi Freedom in April 2003 when he was evading fire in the dark and he tripped over a bail of concertina wire that had been left in the foot path. The MEB stated his low back pain had been present since at least 2000.
4. On 12 November 2009, an informal PEB found the applicant unfit for duty for the following disabilities:
a. Spinal fusion. The PEB stated this condition was not a battle injury and was not caused by an instrumentality of war. Onset of his neck pain occurred after he tripped over a bail of concertina wire while deployed to Iraq, April 2003.
b. Degenerative arthritis of the spine referred to as low back pain. The PEB stated this condition was not a battle injury and was not caused by an instrumentality of war. Onset of his low back pain occurred in 2000 and was attributed to prolonged road marches.
5. The PEB recommended a combined disability rating of 30 percent and that the applicant's disposition be permanent disability retirement.
6. The PEB determined the applicant's retirement was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law.
7. On 24 November 2009, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing.
8. On 23 February 2010, the applicant was released from active duty and placed on the Retired List with a permanent disability rating of 30 percent.
9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that MEB's are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Solider to a PEB.
10. Army Regulation 635-40 states that voting members of a PEB make findings and recommendations in each case referred to the board. The board decides all questions by majority vote and all findings must be based on a preponderance of the evidence.
11. Army Regulation 635-40 defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his neck injury should be shown as being caused by an instrumentality of war.
2. Concertina wire has many uses both in a military and civilian environment. The MEB Summary stated the applicant tripped over a bail of concertina wire that had been left in a foot path. This shows the concertina wire was not being used as an instrumentality of war at the time he tripped over it.
3. The MEB indication of a battle injury is noted. However, the PEB makes the final determination as to whether an injury was caused by an instrumentality of war based on the preponderance of evidence submitted.
4. The PEB determined the applicant's retirement was not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. The applicant concurred with this determination.
5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ __X____ __X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________X___________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100011633
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ABCMR Record of Proceedings (cont) AR20100011633
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